More on Flores-Figueroa

I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.

However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.

Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.

Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.